University  of  California  •  Berkeley 


Right  of  State  to  Regulate 

Distribution  of  Water 

Rtehts 


-BY— 


Prof  O.  L.  Valler,  Pullman,  Wash. 
it 


Address  Delivered  Before  the  State  Bar  Association 
at  the  26th  Annual  Convention,  at  Wenatchee, 
Washington,  August  5th  and  6th,  1914 


1915 
Recorder    Press,    Olympia,    Wash 


RIGHT  OF  STATE  TO  REGULATE  DISTRIBU- 
TION OF  WATER  RIGHTS 


PROF.  O.   L.  WALLER,   PULLMAN 

It  is  the  unanimous  consensus  of  authority  that  the  use  of  water 
in  the  arid  region  of  the  West,  especially  for  the  irrigation  and  re- 
clamation of  land,  is  a  public  use,  in  which  the  general  public  are 
directly  interested,  and  that  the  state  has  authority  to  supervise  the 
distribution  of  the  waters  within  its  boundaries  and  to  deliver  them 
to  those  having  the  lawful  right  to  use  the  same.  This  is  to  prevent 
a  conflict  of  rights  and  to  insure  to  each  owner  of  a  right  the  unin- 
terrupted enjoyment  of  his  own.  There  can  be  no  absolute  title  to 
the  corpus  of  the  water  of  a  stream  or  other  body  of  water,  either  by 
the  public  or  an  individual,  so  long  as  it  flows  naturally.  It  is  like 
the  air — a  naturally-flowing  substance,  incapable  of  Absolute  owner- 
ship. However,  a  right  may  be  acquired  to  the  use  of  running  water, 
or  to  a  certain  amount  of  running  water,  which  the  law  will  regard 
and  protect  as  property.  Further  than  this  the  law  will  not,  be- 
cause it  cannot,  go. 

"Water  is  the  property  of  no  one,  and  subject  to  the  regulation 
and  control  of  the  state  in  its  soverign  capacity."  22  Idaho,  236;  43 
L.  R.  A.,  240. 

Power   of   State. 

The  power  of  the  state  over  public  waters  within  its  boundaries  is 
limited  to  the  enactment  and  enforcement  of  such  reasonable  police 
regulations  as  may  be  deemed  necessary  to  preserve  the  common 
right  of  all.  McLennen  vs.  Prentice,  85  Wis.  427.  Kinney  2nd  Ed., 
Sec.  334. 

The  method  of  acquiring  the  right  to  the  use  of  water  by  appro- 
priation is  based  on  the  civil  law,  ancient  customs,  and  the  method 
adopted  by  the  miners  in  California  when  all  the  lands  and  the  streams 
were  in  Federal  ownership.  By  the  federal  statute  of  1866  free  access 
was  permitted  to  any  one  over  the  lands  of  the  United  States  for  the 
purpose  of  posting  a  notice  of  the  appropriation  of  water,  the  owner 
of  the  fee  (the  United  States)  waiving  its  rights  as  a  riparian  owner; 
but  these  rights  were  not  waived  as  against  lands  in  private  owner- 
ship. Consequently,  there  grew  up  in  California,  and  in  other  states 
adopting  her  system,  two  conflicting  methods  of  acquiring  the  right 
to  the  use  of  the  public  waters.  I  say  "conflicting"  advisedly,  since 
it  took  an  Act  of  Congress  to  remove  the  cloud  from  the  water  titles 
of  the  California  miners,  and  in  every  other  Western  state  where 
water  titles  have  been  defined  and  made  a  matter  of  record,  it  has  re- 
ouired  the  enactment  of  a  water  code  that  provides  for  a  title  based 
on  use. 


YfjAfll 

RIGHT  OF  STATE  TO  REGULATE 


The  leading  English  case — Mason  vs.  Hill — laid  down  the  doc- 
trine that  the  use  of  running  water  was  limited  to  those  past  whose 
land  the  stream  flowed,  as  a  common  benefit,  to  be  enjoyed  by  them 
equally,  with  priority  to  none.  Wiel,  in  his  text  on  water  rights  in 
the  Western  states  says:  "'The  most  essential  feature  of  the  com- 
mon law,  the  exclusion  of  non-riparian  owners  of  lands  from  rights 
to  streams  on  private  land,  is  not  changed  nor  modified  in  California, 
but  is  in  force  there  as  in  England,"  and  cites  Miller  and  Lux  vs. 
Madera  Canal  Co.,  155  Cal.  59,  as  authority.  The  rule  likewise  applies 
in  Washington.  "Any  statement  that  non-riparian  owners  have 
rights  in  streams  (except  by  grant,  condemnation,  and  prescription) 
if  meant  as  a  statement  of  general  principle,  is  not  in  harmony 
with  the  philosophy  of  the  common  law." 

In  Lux  vs.  Haggin  the  court  says:  "The  right  of  any  riparian 
owner  to  restrain  the  diversion,  by  other  than  riparian  owners,  of 
water  which  would,  if  undisturbed,  flow  past  their  lands,  does  not 
rest  upon  the  extent  to  which  they  have  used  the  water,  nor  upon 
the  injury  which  might  be  done  to  their  present  use.  Even  if  these 
plaintiffs  had  never  made  any  use  of  the  water  flowing  past  their 
land,  they  had  the  right  to  have  it  continued  in  its  customary  flow, 
subject  to  such  diminution  as  might  result  from  reasonable  use  by 
other  riparian  proprietors.  This  is  a  right  of  property,  a  part  and 
parcel  of  the  land  itself,  and  plaintiffs  are  entitled  to  have  restrained 
any  act  which  would  infringe  upon  the  right." 

In  Miller  and  Lux  vs.  Madera  Canal  Co.  155  California  59,  the 
ruling  of  the  court  is  prefaced  on  the  facts  that  the  river  banks 
through  the  Miller  and  Lux  property  were  low  and  that  floods  an- 
nually overflowed  them,  and  deposited  on  such  land  large  quantities 
of  fertilizer  and  enriching  materials,  increasing  their  productiveness 
and  enhancing  their  value.  The  defendants  wished  to  store  such 
flood  waters  for  use  on  non-riparian  lands.  The  court  held,  "That 
the  riparian  proprietor  is  entitled  as  against  the  non-riparian  taker 
to  the  ordinary  and  usual  flow  of  the  stream.  There  is  no  good  rea- 
son for  saying  that  the  greatly  increased  flow  following  the  annually 
recurring  fall  of  rain  and  melting  snow  in  a  region  about  the  head  of 
the  stream  is  any  less  usual  and  ordinary  than  the  much  diminished 
flow  which  comes  after  the  rains  and  melting  snows  have  run  off. 
The  doctrine  that  the  riparian  owner  is  limited  to  a  reasonable  use 
of  the  water  applies  only  as  between  different  riparian  proprietors. 
As  against  an  appropriator  who  seeks  to  divert  water  to  non-riparian 
land,  the  riparian  owner  is  entitled  to  restrain  any  diversion  which 
will  deprive  him  of  the  customary  flow  of  water,  which  is,  or  may  be 
beneficial  to  his  land.  He  is  not  limited  by  any  measure  of  reason- 
ableness." 

In  this  state  the  courts  have  followed  the  above  California  case 
and  in  the  case  of  Still  vs.  Palouse  Irrigation  &  Power  Co.,  64  Wash. 
606,  ruled  that,  "As  between  themselves  bank  owners  must  make  a 


DISTRIBUTION  OF  WATER  RIGHTS 


reasonable  use  of  the  waters  of  the  stream.  This  applies  to  all 
uses,  irrigation  included,  but  a  reasonable  use  in  this  state  as  among 
water  users,  does  not  apply  as  between  riparian  owners  and  those 
using  under  appropriation."  In  Longmier  vs.  Yakima  Highlands  Ir- 
rigation Co.,  in  the  Superior  Court  of  Yakima  County,  the  court  said: 
"As  between  a  riparian  owner  and  a  non-riparian  diverter,  the  doc- 
trine of  reasonableness  of  use  has  no  application." 

We  shall  see  that  riparian  rights  are  now  established  in  this 
state  side  by  side  with  appropriation  rights,  the  former  for  private 
lands  and  the  latter  for  public  lands.  The  law  of  appropriation  is 
confined  to  acquisitions  of  public  lands,  and  the  common  law  of 
riparian  rights  is  the  general  law  of  streams,  the  banks  of  which  are 
in  private  ownership.  See  Benton  vs.  Johncox,  17  Wash.  277.  And 
since  the  rule  by  the  Forestry  Department  abrogates  the  statute  per- 
mitting water  appropriations  on  federal  lands,  our  public  waters  are 
practically  under  control  of  the  bank  owners. 

Right  of  Appropriation. 

Alongside  of  these  rules  laid  down  by  our  courts,  the  legislatures 
of  1890-91  and  1899  have  enacted  the  following,  under  which  statutes 
large  appropriations  of  water  have  been  made,  and  many  millions  of 
dollars  have  been  spent  both  in  putting  them  to  beneficial  use  and 
developing  the  country  under  rights  so  acquired: 

"The  right  to  the  use  of  water  in  any  lake,  pond,  or  flowing  spring 
in  this  state,  or  the  right  to  the  use  of  water  flowing  in  any  river, 
stream  or  ravine  of  this  state  for  irrigation,  mining,  or  manufacturing 
purposes,  or  for  supplying  cities,  towns  or  villages  with  water,  or 
for  water  works,  may  be  acquired  by  appropriation,  and,  as  between 
appropriators,  the  first  time  is  the  first  in  right."  L.  91,  p.  327,  Sec. 
1,  Rem.-Bal.  Sec.  6316. 

Appropriating    Surplus   Water. 

"Any  person,  corporation  or  association  of  persons  is  entitled  to 
take  from  the  natural  streams  or  lakes  in  this  state  water  for  the 
purposes  of  irrigation  and  mining,  not  theretofore  appropriated  or 
subject  to  rights  existing  at  the  time  of  the  adoption  of  the  constitu- 
tion of  this  state,  subject  to  the  conditions  and  regulations  imposed 
by  law;  provided,  that  the  use  of  water  at  all  times  shall  be  deemed 
a  public  use  and  subject  to  condemnation  as  may  from  time  to  time 
be  provided  for  by  the  Legislature  of  this  state."  L.  99,  page  261,  Sec. 
1;  Rem.-Bal.  Sec.  6325. 

Rights  of  Riparian   Owners  To   Use  Water. 

"All  persons  who  claim,  own  or  hold  possessory  right  or  title  to 
any  land,  or  parcel  of  land,  or  mining  claim  within  the  boundaries  of 
the  state  of  Washington,  when  such  lands,  mining  claims  or  any  part 
of  the  same  are  on  the  banks  of  any  neutral  stream  of  water,  shall 
be  entitled  to  use  of  any  water  of  said  stream  not  otherwise  appro- 


RIGHT  OF  STATE  TO  REGULATE 


priated  for  the  purposes  of  mining  and  irrigation  to  the  full  extent  of 
the  soil  for  agricultural  purposes."  L.  99,  p.  261,  Sec.  2;  Rem.-Bal., 
Sec.  6326. 

Rights   of    Non-Riparian    Owners. 

"Any  person  who  owns  or  has  the  possessory  rights  to  lands  in 
the  vicinity  of  any  natural  stream  or  lake,  not  abutting  such  stream 
or  lake,  may  take  water  from  such  stream  or  lake  if  there  be  any 
surplus  of  unappropriated  water  in  such  stream  or  lake."  L.90,  p.  707, 
Sec.  7;  Rem.-Bal.  P.  6331. 

Under  these  statutes  it  will  be  observed  that  there  is  no  law 
limiting  the  amount  of  water  that  may  be  filed  on  from  any  stream 
or  lake.  On  some  streams  the  appropriations  now  on  file  call  for 
many  times  the  amount  of  water  available,  and  yet  there  is  no  law 
prohibiting  further  appropriations,  no  officer  whose  duty  it  is  to  elim- 
inate excess  appropriations  and  protect  water  users  against  future  en- 
croachments upon  their  rights,  nor  to  determine  when  an  initiated 
right  has  lapsed. 

The  doctrine  that  a  riparian  right  is  a  property  right,  a  part  and 
parcel  of  the  land,  is  acquired  when  the  land  is  acquired,  is  not 
acquired  by  use  and  cannot  be  lost  by  disuse,  has  been  upheld  in 
California,  Washington,  Kansas,  Montana,  North  Dakota,  (Oklahoma, 
possibly)  and  South  Dakota  and  partially  in  Nebraska,  Texas  and 
Oregon  and  has  been  rejected  in  eleven  states  as  not  applicable  to 
arid  conditions  where  irrigation  is  necessary  to  the  development  of 
the  country.  Those  rejecting  it  are  Colorado,  Arizona,  Alaska,  Idaho, 
New  Mexico,  Nevada,  Utah,  Wyoming,  partially  in  Nebraska,  Oregon 
and  Texas,  New  South  Wales,  Victora,  Australia,  and  the  Northwest 
territories  of  Canada,  India  and  Egypt.  In  support  of  this  see  20 
Wash.  507,  also  Kinney  on  Irrigation  and  Water  Rights,  Sec.  1901. 

Before  any  irrigation  legislation  whatever  was  enacted  in  Can- 
ada, the  Canadian  government  sent  a  commissioner  to  the  Western 
part  of  the  United  States  to  make  a  study  of  our  laws.  Upon  his 
return  this  commissioner  presented  a  report  in  which  the  first  sug- 
gestion was: 

"The  total  suppression  of  all  riparian  rights  in  water,  so  that  the 
same,  being  vested  in  the  crown,  may  be  distributed  under  well  con- 
sidered governmental  control  for  the  benefit  of  the  greatest  possible 
number." 

The  abolition  of  riparian  rights  and  vesting  the  absolute  con- 
trol of  all  water  in  one  strong  central  authority  are  the  important 
provisions  in  the  Northwest  Irrigation  Act. 

In  states  adopting  a  modern  water  law,  riparian  users  have  been 
in  no  way  injured,  but  rather  have  been  given  rights  as  appropriators, 
said  right  dating  back  to  the  time  when  they  first  began  to  use 
water  beneficially.  Their  titles  have  been  defiined  and  provide  for  a 
definite  amount  of  water,  the  users  were  given  established  priorities. 


DISTRIBUTION  OF  WATER  RIGHTS 


Their  rights  were  made  a  matter  or  record  and  can  be  abstracted 
as  land  titles  are.  They  have  a  market  value,  and  are  saleable 
because  they  are  definite,  and  the  purchaser  of  a  title  that  is  not 
open  to  endless  lawsuits. 

But  in  this  part  of  the  country,  where  the  demand  for  water  Is 
each  year  becoming  greater  and  greater,  as  the  country  is  becoming 
more  and  more  settled,  we  consider  that  upon  the  question  of  tne 
flow  of  the  stream  adjacent  to  the  lands  of  a  riparian  owner,  the  cor- 
rect rule  should  be  that  if  the  riparian  owner  does  not  actually  apply 
the  water  to  some  beneficial  purpose,  others  should  be  permitted  to  ap- 
propriate it  who  will  use  it.  The  tendency  of  the  decisions  is  already 
in  that  direction.  In  fact,  this  is  the  only  method  of  reconciling  these 
two  principles  of  law,  wrhich  if  each  is  strictly  enforced,  are  so  ir- 
reconcilable." 

"Thus  in  two  states  which  still  adhere  to  the  common  law  there 
would  be  at  least  one  uniform  law  applicable  to  botn  systems,  and 
that  is,  that  in  order  to  hold  a  right  to  the  use  of  water  under  either 
system,  there  must  be  an  actual  application  of  all  of  the  water  claim- 
ed to  some  beneficial  use  or  purpose." 

Kinney,  Irrigation,   Sec.   823. 

In  section  820,  Kinney  in  substance  says:  "On  account  of  the 
rapid  settlement  of  the  arid  country  and  the  great  demand  for  water 
we  believe  the  time  is  not  far  distant  when  the  courts  will  hold  that 
the  riparian  owners'  right  as  against  that  of  appropriators  above  him 
will  depend  upon  the  amount  of  water  which  he  actually  applies 
to  a  beneficial  use,  upon  the  principle  that  his  right  to  the  water  Is 
simply  usufructuary;  and  if  he  does  not  use  the  vater,  it  is  an 
abandonment  of  this  right,  and  others  may  take  the  water  who  will 
use  it.  This  would  apply  the  same  rule  of  use  to  the  riparian  claim- 
ant as  the  appropriator. 

No  good  reason  can  be  advanced  why  such  a  rule  of  use  should 
not  apply  in  both  cases.  The  appropriator  and  the  riparian  claimant 
both,  either  directly  or  indirectly,  acquired  their  rights  to  the  use 
of  the  public  waters  through  Federal  enactments,  one  recognized  bjr 
virtue  of  the  custom  of  humid  England  and  the  other  by  custom  of 
all  arid  regions  the  world  over,  and  there  is  no  good  reason  why 
one  should  exercise  a  privelege  not  enjoyed  by  the  other.  In  47 
Wash.  314  the  Supreme  Court  of  this  state  have  indicated  their  inten- 
tion to  follow  such  a  principle.  The  coiirt  says:  "We  think  it  com- 
ports with  the  general  policy  of  the  state  to  hold  that  this  statute 
contemplated  the  use  by  the  abuting  owner  of  the  water  necessary 
for  his  present  needs  and  for  those  that  accrue,  as  he  in  good  faith 
proceeds  with  reasonable  dispatch  to  construct  the  means  for  ap- 
plying the  water  to  his  adjacent  arid  lands,"  water  to  be  used  withm 
a  reasonable  time,  say  two  years. 

The  statute  gives  the  riparian  owner  a  preference  right  to  the 
use  of  the  water  adjoining  his  lands  upon  the  theory  that  he  neetfs 


RIGHT  OF  STATE  TO  REGULATE 


and  will  avail  himself  of  the  privilege  thus  given  him.  If  he  is  not 
using  the  water  and  does  not  propose  to  use  it  as  soon  as  practicable 
in  the  ordinary  and  reasonable  development  or  cultivation  of  his 
lands,  then  there  is  no  reason  why  the  water  should  be  withheld  from 
others  who  need  and  will  promptly  use  it  if  permitted  to  do  so.  In 
view  of  the  great  need  for  water  in  this  arid  country,  none  of  it 
should  be  permitted  to  run  to  waste  by  riparian  proprietors  and  oth- 
ers. In  order  that  the  greatest  good  may  come  to  the  greatest  num- 
ber, others  who  will  use  the  waters  of  the  state  should  be  per- 
mitted to  acquire  the  right  to  their  use.  See  also  Northport 
Brewing  Co.  vs.  Parrot,  22  Wash.  243.  Commenting  upon  this  case 
:  Judge  Reavis  says:  "This  case  would  seem  to  limit  riparian  rights 
to  the  beneficial  uses  of  water  by  their  riparian  owners  and  thus  leave 
any  question  of  injury  to  the  diminution  in  quantity  of  the  flowing 
stream  intangible  and  academic." 

Dual    System    of    Water    Rights. 

In  those  states  adhering  to  the  common  law  rule  of  riparian 
fights  and  by  statute  providing  for  the  appropriation  of  water,  as 
we  do  in  Washington,  we  have  dual  systems  of  law,  governing  waters, 
which  are  antagonistic  in  principle,  and  consequently  are  usually 
clashing.  One  exists  by  virtue  of  a  statute  and  the  other  through 
court  decrees.  These  two  systems  are  antagonistic  in  their  foun- 
dation principles,  and  are  therefore  antagonistic  when  it  comes  to 
their  application.  Had  the  government  of  the  United  States  taken 
as  much  pains  in  disposing  of  the  waters  of  the  public  domain  in 
as  uniform  and  systematic  a  manner  as  it  did  of  the  public  lands  in 
the  arid  region  over  which  these  waters  run,  the  greater  portion  of 
which  lands  are  absolutely  worthless  without  the  application  of  wat- 
er, the  laws  regarding  water  rights  would  not  be  in  their  present 
unsettled  and  inharmonious  condition. 

At  present,  the  appropriators  on  our  streams,  in  many  instances, 
have  filed  on  more  water  than  the  stream  could  supply;  and  under 
the  constitution  and  statute  claim  the  right  to  beneficially  use  it  all. 
In  opposition  to  this  the  bank  owners  under  common  law  rules  claim 
the  right  to  have  all  of  said  waters  flow  past  their  lands;  and  have  a 
right  to  restrain  the  diversion  of  said  waters  to  any  lands  beyond 
those  owned  by  the  bank  proprietors. 

Mead  says:  "No  one,  whether  an  appropriator  or  a  riparian  pro- 
prietor knows  definitely  how  much  water  he  is  entitled  to,  nor  how 
soon  he  may  have  to  defend  his  rights  in  a  long  and  costly  law  suit." 

Eminent    Domain. 

By  statute  one  wishing  to  acquire  the  water  rights  of  a  riparian 
owner  for  a  public  use  may  do  so  by  taking  them  under  an  eminent 
domain  proceeding,  but  only  such  part  of  the  water  as  the  owner 
is  not  now  using  for  irrigation  or  as  will  not  be  needed  by  him  in 
the  future. 


DISTRIBUTION  OF  WATER  RIGHTS 


Kinney  on  Irrigation  and  Water  Rights,  Sec.  1089,  says:  "That 
the  difficulties  in  the  way  of  getting  the  proper  defendants  in  a  suit 
to  condemn  riparian  rights  are  practically  prohibitive  against  the 
bringing  of  such  action,  although  the  abstract  right  to  condemn  such 
property  may  be  given  by  statute,  and  that,  if  possible,  it  would  be 
a  vastly  expensive  proceeding." 

In  45  Wash.  625,  Rudkin  says:  "The  distribution  of  the  waters 
of  a  stream  among  riparian  owners,  according  to  common  law  prin- 
ciples, is  most  difficult." 

In  this  state  the  condemner  must  first  pay  for  a  right  of  way 
across  riparian  lands  and  then  for  the  use  of  water  in  excess  of 
the  riparian  owners'  present  needs  and  any  contemplated  use  that 
said  owner  may  desire  to  put  the  water  to  within  a  reasonable  time. 

In  other  words,  the  bank  owner  is  presumed  to  have  a  right  to  the 
use  of  the  public  waters  of  the  state  in  excess  of  his  present  arid 
contemplated  needs,  and  if  any  one  else  wants  to  use  such  excess 
he  must  go  to  the  expense  of  buying  it  on  a  holdup  basis  or  under- 
taking the  herculean  task  of  condemning  it.  And  yet  the  rights  which 
the  purchaser  must  buy  or  condemn  in  order  to  obtain  immunity  from 
injunction  are  recognized  as  of  no  general  worth.  For,  in  assessing 
damages  on  unused  riparian  rights  in  Nebraska,  the  courts  have  held 
that  where  the  riparian  proprietors  were  possessed  of  the  naked 
right  to  a  reasonable  use  of  the  waters  of  a  stream,  yet  where  such 
a  right  is  not  coupled  with  an  actual  diversion  or  application  of  such 
waters  to  some  beneficial  use,  the  measure  of  damages  for  future  use, 
defeated  by  the  taking,  cannot  be  considered.  McCook  Irrigation  Co. 
vs.  Crews.  70  Neb.  115. 

Kinney  says:  "In  those  state  which  adhere  to  the  common  law 
of  riparian  rights  *  *  *  these  rights  should  be  condemned  for 
public  uses,  and  the  measure  of  damages  should  be  -oased  upon  the 
present  use  that  is  being  made  by  a  riparian  proprietor,  and  not 
upon  some  vague,  uncertain  scheme  for  the  use  of  the  water  in  the 
future." 

Under  the  doctrine  laid  down  in  the  Still  case,  64  Wash.  606, 
and  recently  followed  in  a  case  in  the  Superior  Court  of  Yakima 
County,  every  riparian  owner  on  any  stream  in  Washington  not 
only  has  a  right  to  the  use  of  water  for  domestic  and  irrigation  pur- 
poses, but  as  against  the  appropriator  of  water,  has  a  right  to  his 
method  of  use,  however  wasteful  that  may  be.  Chandler  says:  "The 
conclusion  to  be  drawn  from  these  cases  is  that  the  lower  riparian 
owner  may  not  only  enjoin  from  the  diversion  of  the  natural  flow,  but 
may  also  enjoin  the  storage  of  even  the  flood  waters  if  such  storage 
will  result  in  damages,  either  present  or  prospective." 

Rights    to    Store    Water    Cannot    Be    Acquired    by    Condemnation. 

Under  the  riparian  doctrine  it  will  be  impossible  to  store  the 
flood  waters  of  our  streams  for  us  upon  non-riparian  lands  unless 


10  RIGHT  OF  STATE  TO  REGULATE 

the  bank  owners  are  bought  off  at  their  own  prices.  Under  our  statute 
and  the  rulings  of  our  courts,  the  privilege  of  storing  flood  waters  to- 
be  used  on  other  that  riparian  lands  cannot  be  acquired  by  con- 
demnation, because  the  statute  expressly  says  that  the  right  to  con- 
demn riparian  rights  "Is  not  intended  in  any  manner  to  allow  water 
to  be  taken  from  any  person,  that  is  used  by  said  person  himself 
for  irrigation,  or  that  is  needed  for  that  purpose  by  any  such  person"; 
and  in  the  cases  cited  the  courts  have  said  "that  the  flood  waters 
were  being  used  by  the  riparian  owners."  In  Still  vs.  Palouse  Ir- 
rigation &  Power  Co.,  64  Wash.  606,  the  court  says:  "In  this  case 
the  respondents  do  make  use  of  the  high  waters,  and  the  greatest 
use  and  benefit  to  their  land  comes  from  such  use."  This  leaves  the 
riparian  owner  to  sell  his  flood  water  rights,  or  not,  as  he  likes,  and 
at  any  price  he  may  see  fit  to  ask  or  accept.  Under  such  conditions, 
men  of  ordinary  business  sagacity  will  not  invest  their  money  in 
water  right  projects.  Under  such  a  rule  of  law  the  rights  of  all 
water  users,  acquired  by  appropriation,  and  now  put  to  a  beneficial 
use,  are  open  to  attack  by  any  riparian  proprietor  who  may  wish  to 
hold  up  the  water  level  in  the  stream  so  it  may  either  flood  or  "sub" 
his  land. 

Investments  of  Appropriators  in  Jeopardy 

Abstract  from  argument  of  defendant's  attorney  in  the  case  of 
Lux  vs.  Haggin. 

"The  interests  involved  in  this  suit  are  of  such  magnitude,  not 
only  as  beiv.  een  the  parties  themselves,  but  also  as  to  thousands  of 
others,  and  the  result  reached  so  disastrous  to  the  defendants,  so  de- 
structive to  the  vast  and  beneficial  improvements  made  by  them  in 
good  faith  and  in  the  belief  that  the  same  law  as  to  those  matters  ap- 
plird  both  to  the  state  and  government  lands  in  California,  so  disas- 
trous to  the  people  of  a  large  part  of  California,  and  so  destructive  of 
all  those  great  interests  which  have  grown  up  under  the  irrigation 
system  based  upon  the  doctrine  of  appropriation  to  beneficial  uses, 
that  we  firmly  believe  your  honors  will  wish,  even  if  tn  the  end  you 
feel  compelled  to  adhere  to  the  views  already  expressed,  to  do  so 
only  after  you  have  permitted  argument  to  be  exhausted  upon  the 
subject  and  have  received  all  the  light  which  the  profession  can  give. 
No  matter  how  onerous  and  pressing  the  duties  whicn  devolve  upon 
your  honors,  there  is,  we  submit,  before  you  no  question  or  business 
which  can  compare  in  public  interest  to  the  inquiry  wtiether  the  de- 
cree shall  stand  which  condemns  to  absolute  barrenness  the  thousands 
of  acres  of  land  reclaimed  from  the  desert  by  the  vast  expenditures 
of  the  defendants  here  and  now  a  garden  of  productiveness  and 
beauty,  in  obedience  to  the  law  of  another  country,  based  upon  the 
customs,  and  arising  under  conditions  the  most  diverse  from  ours; 
whether  in  obedience  to  that  law,  a  large  part  of  this  state,  after 
a  progress  almost  unparalleled  and  improvements  made  at  incal- 


DISTRIBUTION  OF  WATER  RIGHTS  11 

culable  cost  of  labor  and  treasure,  is  to  be  condemned  to  return  to 
sterility  and  unproductiveness;  whether,  in  obedience  to  that  law,  the 
wheel  of  progress  is  to  be  turned  back  and  the  present  prosperity 
of  thousands,  changed  into  ruin  and  poverty  that  a  few  men,  who 
happen  to  own  land  on  the  banks  below  may  enjoy  the  pleasure 
of  seeing  the  stream  flow  as  it  was  accustomed  to  flow.  Your  honors 
will  not,  we  are  sure,  forget  that  this  decree,  if  it  is  to  stand,  not  only 
overthrows  the  progress  of  the  past,  but  puts  a  perpetual  ban  upon 
the  future  progress  and  development." 

If  the  rule  laid  down  in  Miller  &  Lux  vs.  Madera  Canal  Co. 
supra,  and  followed  by  our  own  Supreme  Court  in  Still  vs.  Palouse 
Irrigation  &  Power  Co.,  64  Wash.  606,  and  in  the  case  of  Longmier 
vs.  Yakima  Highlands  Irrigation  Co.  is  the  law  in  this  state,  then 
the  extract  from  Mr.  John  Garber's  argument  (though  gloomy)  is 
entirely  applicable  to  our  conditions. 

In  64  Wash,  supra,  the  Court  says:  "A  riparian  owner,  such  as 
respondents  are  her  shown  to  be,  has  a  right  to  tne  natural  flow 
of  the  waters  in  their  natural  and  accustomed  channels  without 
diminution  or  alteration,  subject  only  to  such  rights  and  use  in  every 
other  riparian  owner,  a  right  that  is  as  much  included  in  the  owner- 
ship of  the  land  as  the  soil  itself,  and  can  no  more  be  interfered 
with  by  the  act  of  others.  And,  while  the  application  of  this  doc- 
trine has  in  some  of  the  Western  states  sometimes  been  denied,  on  the 
theory  that  the  rules  of  the  common  law  respecting  riparian  owners 
were  inapplicable  to  conditions  and  necessities  of  the  people  in  the 
particular  localities  where  the  cause  of  action  arose,  it  has  since  its 
first  announcement  here  invariably  been  upheld  in  this  state,  except- 
ing where  it  has  been  subjected  to  a  priority  of  appropriation." 

Citing  Crook  vs.  Hewitt,  4  Wash.,  749;  Rigney  vs.  Tacoma  Light 
&  Power  Co.,  9  Wash.  576;  Benton  vs.  Johncox,  17  Wash.  277;  Ne\v 
Whatcom  vs.  Fairhaven  Land  Co.,  24  Wash.  493;  Madison  vs.  Spokane 
Valley  Land  Co.  40  \Vash.  414;  McEvoy  vs.  Taylor,  56  Wash  357. 

Considering  the  fact  that  the  great  bulk  of  the  water  now  di- 
verted and  used  for  irrigation  purposes  in  the  state  was  acquired 
under  appropriation  statutes,  and  that  millions  of  dollars  have  been 
invested  in  developing  such  water  rights  and  that  millions  more 
have  been  invested  by  substantial  citizens  who  live  under  such  pro- 
jects, there  would  seem  to  be  a  legal  and  moral  duty  resting  upon 
the  state  to  remove  the  cloud  from  such  titles,  to  define  them,  and 
to  make  them  a  matter  of  record. 

Water   Right    Litigation. 

The  history  of  water  rights  in  those  states  operating  under  the 
common  law  of  riparian  rights  is  that  of  endless  litigation  and  delay 
in  development  of  their  natural  resources. 

In  California,  following  the  common  law  rule,  millions  of  dollars 
have  been  spent  in  water  litigation  without  settling  the  rights  of  any- 


12  RIGHT  OF  STATE  TO  REGULATE 

body  except  those  directly  parties  to  the  litigation.  "Under  existing 
conditions  water  rights  in  California  cannot  be  settled  until  every 
claimant  on  each  stream  and  stream  system  has  sued  or  has  been 
sued  by  every  other  claimant  thereon."  (See  Conservation  Commis- 
missioner  Report  of  California,  1912.)  Washington  in  adopting  the 
riparian  doctrine,  has  placed  every  water  title  in  the  state  in  the 
same  jeopardy  as  those  in  California. 

All  water  rights  in  this  state  are  open  to  attack  in  the  courts, 
and  can  never  be  denned  and  made  definite  until  each  claimant  of 
a  water  right  has  sued  every  other  claimant  on  the  stream  or  stream 
system,  or  has  been  sued  by  them.  And  even  then  there  is  now 
nothing  but  the  bringing  of  another  suit  to  prevent  the  newcomer 
from  filing  an  appropriation  and  using  the  water  of  the  person  hav- 
ing the  right  to  it  under  the  decree. 

It  is  readily  seen  that  the  cost  of  such  a  series  of  proceeding 
would  be  appalling,  and  even  then,  could  arrive  at  no  final  results 
until  our  appropriation  laws  are  amended  and  riparian  rights  are 
defined  as  to  quantity  and  method  of  use. 

Kinney,  in  section  1531,  says:  "Although  a  person  may  make  a 
valid  prior  appropriation  of  water  of  a  natural  stream  or  other  source 
of  natural  water  supply,  may  record  his  notice  in  accordance  witli 
the  law;  he  may  apply  the  water  to  some  beneficial  use  or  purpose 
for  many  years;  he  may  lay  claim  to  his  rights  adversely  to  all  the 
world,  and  yet  this  is  not  deemed  sufficient  determination  of  his 
rights,  for  the  reason  that  there  may  be  many  others  who  have  made 
like  appropriations  from  the  same  source  of  supply,  and  whose  claims 
are  bound  in  time  in  some  manner  to  conflict  with  the  claims  of  the 
prior  appropriator. 

"Simply  because  a  person  lays  claim  to  a  certain  right,  although 
be  does  it  by  means  of  notice  to  all  the  world,  and  while  it  may 
put  others  on  their  guard,  it  is  not  proof  of  the  validity  of  the  claim. 

"The  title  to  a  water  right  is  not  perfect  in  any  claimant  until 
there  has  been  and  adjudication  or  legal  determination  of  the  same 
and  the  title  thereto  adjudged  to  be  in  the  claimant  as  against-  all  the 
world." 

There  never  has  been  any  method  in  this  state,  and  there  is  no 
method  now,  by  which  the  titles  to  the  use  of  water  can  be  quickly, 
inexpensively  and  finally  determined. 

It  has  been  said  in  states  that  have  adjudicated  their  water 
rights  that  the  court  decrees  conferred  no  new  rights,  but  embodied 
in  the  form  of  a  permanent,  binding  decree  the  evidence  of  a  pre- 
existing right.  Since  many  of  the  water  rights  of  this  state  are 
based  on  use,  and  since  the  bulk  of  such  holdings  is  in  the  hands 
of  small  holders  and  those  least  able  to  defend  their  rights,  it  is 
desirable  that  the  evidence  upon  which  such  rights  an«  priorities  rest 
should  be  made  a  matter  of  record  before  the  old  settlers  have  pass- 
ed away. 


DISTRIBUTION  OF  WATER  RIGHTS  13 

Since  1904  three  water  code  commissions  have  been  appointed 
by  the  governors  of  the  state  to  report  bills  to  the  Legislature  that 
would  cure  existing  evils  in  our  water  law,  and  by  making  titles 
secure  to  thereby  promote  the  development  of  the  state.  Concern- 
ing the  adaptability  of  the  bills  reported  by  the  several  commissions, 
I  quote  the  following: 

Proposed    Law    Satisfactory. 

Kinney  says  that,  in  general,  water  laws,  "such  as  here  pro- 
posed for  this  state,  have  given  the  greatest  satisfaction,  and  there 
has  been  no  attempt  to  repeal  them  in  states  where  they  have  once 
been  adopted.  In  operation  they  have  been  found  so  salutary  and 
free  from  unnecessary  expense  as  to  command  the  tacit  endorse- 
ment of  all  subsequent  Legislatures." 

The  bill  proposed  to  the  1904  Legislature,  and  tht  ones  following 
were  prepared  after  a  great  deal  of  study  and  each  of  them  has  re- 
ceived the  approval  of  some  of  our  ablest  jurists  and  law  writers. 
On  the  House  Bill  284  of  the  twelfth  Legislature  in  1911,  Mr.  Kinney 
said:  "We  have  made  a  careful  examination  of  the  proposed  bill  and 
believe  that  it  is  one  of  the  best  that  could  be  adopted  under  the 
circumstances  and  conditions  existing  in  the  state."  He  further  says: 
"As  slow  as  the  state  of  Washington  has  been  in  taking  up  the  work 
of  irrigation  and  the  reclamation  of  its  arid  lands,  the  Legislature 
has  been  even  slower  in  enacting  sufficient  laws  for  the  control,  ap- 
propriation and  distribution  of  the  water  within  its  boundaries.  The 
method  of  appropriation  of  the  water  within  the  state  may  be  con- 
sidered antiquated  in  these  times  of  water  irrigation  codes." 

Of  Senate  Bill  405,  introduced  into  the  last  Legislature  Judge 
Will  R.  King,  formerly  supreme  court  justice  of  Oregon  and  now 
chief  counsel  and  commissioner  of  the  United  States  Reclamation 
Service,  in  a  recent  letter  said:  "Your  recent  communication,  invit- 
ing my  views  upon  the  proposed  water  code  for  your  state  (Senate 
Bill  405),  at  hand.  I  have  carefully  examined  this  measure  and  must 
say  that,  while  it  is  not  just  as  I  would  have  it  in  all  respects,  I 
believe  its  adoption  would  give  your  state  the  most  efficient  water 
code  yet  adopted  anywhere.  It  is,  in  effect,  very  similar  to  the  Oregon 
water  code.  It,  however,  has  some  decided  improvements." 

Results  to   Be  Secured. 

Concerning  the  results  to  be  secured  by  such  an  enactment  Judge 
King  in  discussing  the  law  of  water  conservation  and  use  for  Oregon, 
previous  to  the  enactment  of  her  water  code,  in  part  said:  "A  central 
office  will  be  provided,  where  a  complete  and  reliable  record  of  all 
water  rights  as  initiated,  or  of  early  rights  as  determined,  can  be 
found." 

"A  letter  addressed  to  this  office  will  bring  by  return  mail  a 
definite  statement  as  to  the  amount  and  priority  of  any  recorded 


14  RIGHT  OF  STATE  TO  REGULATE 

right,  whether  vested  or  only  initiated.  If  a  prospective  investor  de- 
sires to  know  the  total  amount  of  vested  rights  to  water  from  a 
stream  in  order  to  ascertain  the  amount  of  surplus  water,  eventually 
this  can  be  furnished  without  delay.  And  no  right  to  use  of  water 
from  any  public  stream  can  thereafter  become  vested  except  upon 
compliance  with  law  and  complete  record  in  the  central  office." 

"If  surplus  water  is  believed  to  exist  in  any  stream,  a  definite 
method  of  procedure  will  be  provided  whereby  a  vested  right  to 
such  water  can  be  secured. 

"Instead  of  posting  a  notice  in  the  brush  on  the  bank  of  a  stream 
where  no  one  can  find  it,  as  under  the  present  law,  the  date  of  prior- 
ity will  relate  back  to  the  date  of  receipt  of  an  application  in  the  of- 
fice. Any  application  which  is  in  proper  form,  as  prescribed  by  law, 
can  be  filed  then  as  now.  Notice  of  such  application  shall  be  given  by 
publication  in  a  local  paper  and  a  time  set  to  hear  and  consider  any 
objections  by  those  who  may  be  injured  by  such  diversion." 

Actual  construction  will  be  commenced  and  prosecuted  at  the 
discretion  of  the  hydraulic  engineer.  And  if  the  terms  of  the  permit 
are  not  complied  with,  the  right  will  revert  to  the  state.  When  the 
appropriation  has  been  complied  with,  by  the  application  of  the  water 
to  a  beneficial  use,  a  certificate  in  evidence  of  the  right  shall  be  Is- 
sued and  recorded  in  the  office  of  the  state  hydraulic  engineer  and 
in  the  auditor's  office  in  the  county  in  which  the  right  is  to  be  ex- 
ercised. 

Vested  rights  will  be  defined  and  become  a  matter  of  record  se> 
that  said  rights  may  be  abstracted  as  land  titles  are.  This  will  make 
holders  of  water  rights  secure  in  such  rights  and  open  a  field  for  le- 
gitimate investments. 


08 


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